Jurisprudence on warrantless long-term surveillance is still all over the place. On one hand, some courts feel anything observable by passersby shouldn’t be off limits to law enforcement officers who haven’t secured a search warrant.
Other courts have determined lengthy surveillance — especially when using cameras that can zoom, enhance, move, and record every minute of weeks of watching — might be a Fourth Amendment problem. In these cases, the inability of officers to perform the same surveillance without raising suspicion from the surveilled appears to be the difference, especially when coupled with the perfect recall recordings can provide.
This ruling [PDF] by a Kansas federal court says 10 weeks of always-on pole camera surveillance doesn’t raise constitutional questions. (h/t Orin Kerr, who notes the First Circuit has been sitting on a possibly precedential pole camera surveillance case for more than a year now. [Not that the case would matter here in terms of circuit precedent, but may have been useful to cite during arguments for/against…])
The underlying criminal offense isn’t the sort of thing most pole camera surveillance cases are made of. No drugs or weapons trafficking. Just some alleged “theft of public money.”
Suspecting that Defendant Bruce Hay had falsely claimed he was disabled to receive disability payments, federal agents surveilled him without a warrant to obtain evidence of his physical capabilities. The agents installed a pole camera on public property across the street from his residence and recorded nearly ten weeks’ worth of footage.
The federal officers were members of the Veteran’s Administration’s Office of the Inspector General. They placed a camera facing Hay’s house that was able to capture his porch, front yard, and driveway. The camera was activated for nearly eight continuous weeks. It was then used intermittently to capture another two weeks of footage from March 24 to May 8, 2017, following the eight straight weeks captured from October 6, 2016 to November 29, 2016.
The camera was motion-activated and could be controlled remotely by OIG agents. They could also control its zoom, pan, and tilt features. The camera did not record audio, but it did allow the VA OIG to record everything seen by the camera for access by agents.
Hay argued that while Tenth Circuit precedent holds that pole camera surveillance isn’t a search under the Fourth Amendment, the Supreme Court’s Carpenter decision (creating a warrant requirement for historical cell site location data) undercut circuit precedent.
Here, just like in Jackson (and Cantu), the pole camera could not view inside Hay’s house; the camera could only capture the front of his residence, an area plainly visible to the public. Under Jackson, then, Hay lacked a reasonable expectation of privacy in the area viewed by the camera, so the pole camera surveillance was not a search under the Fourth Amendment.
Hay does not attempt to distinguish Jackson. Instead, he contends Jackson does not control the outcome of this case after Carpenter v. United States, where the Supreme Court found an expectation of privacy in historical cell-site location records, because Carpenter “upended” Jackson’s reasoning. Hay argues that, under Carpenter and the concurring opinions in United States v. Jones, he has a “reasonable expectation of privacy in his movements over time.” And he urges this Court to find that the prolonged pole camera surveillance here invaded that privacy expectation. While Hay does not expressly use the term, his argument is premised on a “mosaic theory” of the Fourth Amendment, under which law enforcement activities that are not searches in isolation may nevertheless become a search when viewed in the aggregate.
The federal court disagrees. It says there’s no binding precedent that requires the court to read the Supreme Court decisions in Jones and Carpenter as creating a “mosaic theory” capable of covering the surveillance of a home’s entrance. This surveillance doesn’t reveal much about a person’s movements, other than when they leave and when they come back, in contrast to weeks of historic cell site location info (or a car-mounted GPS-tracking device), which reveals plenty about a person’s movements.
And, the court adds, the Supreme Court expressly limited its finding to the cell site location info at hand.
The Carpenter Court also emphasized that its ruling was “a narrow one,” limited to the specific question presented in that case, and it did not “call into question conventional surveillance techniques and tools, such as security cameras.” This Court therefore cannot read Jackson as relying on reasoning that Carpenter has upended.
That’s not to say the implications of Carpenter may not ever become a factor in cases like these. It’s that this circuit (the Tenth) isn’t quite there yet. As it stands now, Hay’s arguments fail.
Hay may well be right that the Tenth Circuit should, in light of Carpenter, reconsider Jackson and broaden the application of Carpenter’s mosaic reasoning to pole camera surveillance. But this Court’s role is to apply Tenth Circuit precedent, not to reconsider it.
This appears to be the court hinting Hay’s arguments might fare better one step up the ladder at the Tenth Circuit Court of Appeals. Then again, the Tenth could simply decide its prior precedent is still the law (of this portion) of the land and boot it back with little to no comment.
Hay’s “mosaic theory” doesn’t apply here, either. The camera watched his house. It did not track his movements beyond that space. While it did give investigators advantages they would not have had if they had engaged on an in-person stakeout, it did not allow them to surveil his movements once he left the house.
The court closes its opinion by again hinting it might be worth exploring at the appellate level.
Hay raises legitimate concerns about the duration of the pole camera surveillance. But the pole camera surveillance in this case does not present the same privacy concerns that animated the majority in Carpenter and the concurrences in Jones. Thus, even applying the mosaic theory, the prolonged pole camera surveillance did not invade any reasonable expectation of privacy.
For now, it’s a loss for Hay and anyone seeking to challenge warrantless pole camera surveillance. But the court here has hinted it may be time for existing circuit precedent to be given a closer examination by the higher court. Hay may not present the best case for overturning precedent, but 10 weeks of nearly uninterrupted surveillance is a better case than most, even if the underlying crime seems a bit underwhelming.
